UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

UNITED STATES OF AMERICA )

)
v. )
) Criminal No. 4:93CR14WS
PAUL B. CLARK, )
)
Defendant. )

UNITED STATES' PROPOSED JURY INSTRUCTIONS

Respectfully submitted,

Dorothy E. Hansberry

Stephen C. Gordon
Attorneys
U.S. Department of Justice
Antitrust Division
Richard B. Russell Building
75 Spring Street, S.W., Suite 1176
Atlanta, Georgia 30303
(404) 331-7100
Jack B. Lacy, Jr.
Assistant United States Attorney
One Jackson Place
188 East Capitol Street
Suite 500
Jackson, Mississippi 39201
(601) 965-4480
 Table of Contents
Requested Jury Instructions

Request Page
No.

1. Preliminary Instruction Before Trial . . . . . . . . . 1

(Short Form)
2. Note-Taking By Jurors Optional Additional . . . . . . . 4
To Preliminary Instruction (Alternative A)
3. Court's Instructions To The Jury At . . . . . . . . . . 5
Conclusion of Trial
4. Duty To Follow Instructions . . . . . . . . . . . . . . 6
5. Presumption Of Innocence--Burden Of . . . . . . . . . . 7
Proof--Reasonable Doubt
6. Evidence-Excluding Argument Of . . . . . . . . . . . . 8
Counsel And Comment Of Court
7. Evidence-Inferences-Direct And . . . . . . . . . . . . 9
Circumstantial (Alternative B)
8. Credibility Of Witnesses . . . . . . . . . . . . . . 10

9. Impeachment By Prior Inconsistencies . . . . . . . . 12

10. Impeachment By Prior Conviction . . . . . . . . . . . 13
(Witness Other Than Defendant)
11. Caution--Punishment . . . . . . . . . . . . . . . . . 14
12. Purpose And Summary Of Sherman Act Section 1 . . . . 15

13. Caution -- Consider Only Crime Charged . . . . . . . 17

14. Offense Charged . . . . . . . . . . . . . . . . . . . 18
15. Offense - Essential Elements Of . . . . . . . . . . . 20
The Sherman Act Offense

i
Request Page
No.

16. Sherman Act - Conspiracy Defined . . . . . . . . . . 22

17. Membership In A Conspiracy . . . . . . . . . . . . . 25

18. Bid Rigging Per Se Unreasonable . . . . . . . . . . . 27
19. Knowledge And Intent . . . . . . . . . . . . . . . . 30
20. Interstate Commerce . . . . . . . . . . . . . . . . . 32
21. Offense - Statute of Limitations . . . . . . . . . . 35
22. Offense - Exact Date Not Required . . . . . . . . . . 37

23. Offense - Success Immaterial . . . . . . . . . . . . 38

24. Proof Of Overt Act Unnecessary . . . . . . . . . . . 40
25. Offense - Good Motives Immaterial . . . . . . . . . . 41
26. Jurisdiction And Venue . . . . . . . . . . . . . . . 42
27. Witnesses - Immunity And Plea Agreements . . . . . . 43
28. Duty to Deliberate - Verdict Form . . . . . . . . . . 45

ii
 Government's
Request No. 1
PRELIMINARY INSTRUCTION BEFORE TRIAL (SHORT FORM)

Members of the Jury:

You have now been sworn as the jury to try this case. By
your verdict you will decide the disputed issues of fact. I will
decide all questions of law that arise during the trial and,
before you return to deliberate together and decide the case at
the end of the trial, I will instruct you on the rules of law
that you must follow in reaching your decision.

Because you will be called upon to decide the facts of the

case, you should give careful attention to the evidence presented
for your consideration during the trial, but you should keep an
open mind and should not form or state any opinion about the case
until you have heard all of the evidence, the closing arguments
of the lawyers, and my instructions to you on the applicable law.

During the trial you must not discuss the case in any manner
among yourselves or with anyone else, and you must not permit
anyone to attempt to discuss it with you or in your presence.

Insofar as the lawyers are concerned, as well as others whom you

recognize as having some connection with the case, you are
instructed that, in order to avoid even the appearance of

impropriety, you should have no conversation whatsoever with

those persons while you are serving on the jury.

1
 You must also avoid reading any newspaper articles that
might be published about the case now that the trial has begun,
and you must also avoid listening to or observing any television
or radio news programs because of the possibility that some
mention might be made of the case.
The reason for these cautions, of course, lies in the fact
that it will be your duty to decide this case only on the basis
of the evidence presented during the trial without consideration
of any other matters.

[If desired, insert here instruction on note-taking by

jurors, charge no. 2.]
During the trial I may be called upon to rule on motions or

objections made by the lawyers. You should not infer from any
ruling I may make that I have any opinions on the merits of the
case favoring one side or the other. If I sustain an objection

to a question that goes unanswered by the witness, you should not

speculate on what answer might have been given, nor should you
draw any inferences from the question itself.

During the trial it may be necessary for me to confer with

the lawyers out of your hearing concerning questions of law or
procedure that require consideration by the Court alone. On some

occasions you may be excused from the courtroom as a convenience

to you and to us while I discuss such matters with the lawyers.
I will try to limit these interruptions as much as possible, but
you should remember at all times the importance of the matter you

2
are here to determine and should be patient even though the case
may seem to go slowly.
Now, we will begin by affording the lawyers for each side an
opportunity to make opening statements to you in which they may
explain the issues in the case and summarize the evidence that
they expect will be presented to you. After all the evidence has
been presented, the lawyers will then be given another
opportunity to address you and make their summations or final
arguments in the case. The statements that the lawyers make now,

as well as the arguments they present at the end of the trial,

are not to be considered by you either as evidence in the case,
which comes only from the witnesses and exhibits, or as your

instruction on the law, which will come only from me. These
statements and arguments are intended to help you understand the
issues and the evidence as it comes in, as well as the positions

taken by both sides. So I ask that you now give the lawyers your
close attention as I recognize them for the purpose of making an
opening statement.

Authority
General and Preliminary Instruction 1.02, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (pp. 9-11).

Government's
Request No. 2

NOTE-TAKING BY JURORS OPTIONAL ADDITIONAL

TO PRELIMINARY INSTRUCTION (ALTERNATIVE A)

3
 You may not take notes during the course of the trial.

There are several reasons for this. It is difficult to take

notes and, at the same time, pay attention to what a witness is
saying. Furthermore, in a group the size of yours, certain
persons will take better notes than others, and there is the risk
that the jurors who do not take good notes will depend upon the
jurors who do take good notes. The jury system depends upon all
twelve jurors paying close attention and arriving at a unanimous
decision. I believe that the jury system works better when the
jurors do not take notes.

You will note that we do have an official court reporter

making a record of the trial; however, we will not have
typewritten transcripts of this record available for your use in

reaching a decision in this case.

Authority
General and Preliminary Instruction 1.03, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 12).

Government's
Request No. 3

COURT'S INSTRUCTIONS TO THE JURY

AT CONCLUSION OF TRIAL

Members of the Jury:

4
 In any jury trial there are, in effect, two judges. I am
one of the judges; the other is the jury. It is my duty to
preside over the trial and to decide what evidence is proper for
your consideration. It is also my duty at the end of the trial
to explain to you the rules of law that you must follow and apply
in arriving at your verdict.
First, I will give you some general instructions which apply
in every case, for example, instructions about burden of proof
and how to judge the believability of witnesses. Then I will

give you some specific rules of law about this particular case,
and finally I will explain to you the procedures you should
follow in your deliberations.

Authority
General and Preliminary Instruction 1.04, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 14).

Government's
Request No. 4
DUTY TO FOLLOW INSTRUCTIONS

You, as jurors, are the judges of the facts. But in

determining what actually happened--that is, in reaching your

decision as to the facts--it is your sworn duty to follow all of

the rules of law as I explain them to you.
You have no right to disregard or give special attention to
any one instruction, or to question the wisdom or correctness of

5
any rule I may state to you. You must not substitute or follow
your own notion or opinion as to what the law is or ought to be.
It is your duty to apply the law as I explain it to you,
regardless of the consequences.
It is also your duty to base your verdict solely upon the
evidence, without prejudice or sympathy. That was the promise
you made and the oath you took before being accepted by the
parties as jurors, and they have the right to expect nothing
less.

Authority
General and Preliminary Instruction 1.05, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 15).

Government's
Request No. 5

PRESUMPTION OF INNOCENCE--BURDEN
OF PROOF--REASONABLE DOUBT

The indictment or formal charge against a defendant is not

evidence of guilt. Indeed, the defendant is presumed by the law
to be innocent. The law does not require a defendant to prove
his innocence or produce any evidence at all [and no inference
whatever may be drawn from the election of a defendant not to
testify]. The government has the burden of proving the defendant
guilty beyond a reasonable doubt, and if it fails to do so, you
must acquit the defendant.
While the government's burden of proof is a strict or heavy
burden, it is not necessary that the defendant's guilt be proved
beyond all possible doubt. It is only required that the

6
government's proof exclude any "reasonable doubt" concerning the
defendant's guilt.
A "reasonable doubt" is a doubt based upon reason and common
sense after careful and impartial consideration of all the
evidence in the case. Proof beyond a reasonable doubt,
therefore, is proof of such a convincing character that you would
be willing to rely and act upon it without hesitation in the most
important of your own affairs. If you are convinced that the
accused has been proved guilty beyond a reasonable doubt, say so.
If you are not convinced, say so.
Authority
General and Preliminary Instruction 1.06, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 16).
[Delete bracketed material if defendant testifies.]
Government's
Request No. 6
EVIDENCE--EXCLUDING ARGUMENT OF COUNSEL
AND COMMENT OF COURT

As I told you earlier, it is your duty to determine the

facts. In doing so, you must consider only the evidence

presented during the trial, including the sworn testimony of the
witnesses and the exhibits. Remember that any statements,

objections, or arguments made by the lawyers are not evidence.

The function of the lawyers is to point out those things that are
most significant or most helpful to their side of the case, and

in so doing to call your attention to certain facts or inferences

that might otherwise escape your notice. In the final analysis,
however, it is your own recollection and interpretation of the

7
evidence that controls in the case. What the lawyers say is not
binding upon you.
Also, do not assume from anything I may have done or said
during the trial that I have any opinion concerning any of the
issues in this case. Except for the instructions to you on the
law, you should disregard anything I may have said during the
trial in arriving at your own findings as to the facts.

Authority
General and Preliminary Instruction 1.07, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 18).

Government's
Request No. 7
EVIDENCE--INFERENCES--DIRECT AND CIRCUMSTANTIAL
(ALTERNATIVE B)

While you should consider only the evidence, you are

permitted to draw such reasonable inferences from the testimony

and exhibits as you feel are justified in the light of common

experience. In other words, you may make deductions and reach
conclusions that reason and common sense lead you to draw from
the facts which have been established by the evidence.
In considering the evidence you may make deductions and
reach conclusions which reason and common sense lead you to make;
and you should not be concerned about whether the evidence is
direct or circumstantial. "Direct evidence" is the testimony of
one who asserts actual knowledge of a fact, such as an eye

8
witness. "Circumstantial evidence" is proof of a chain of facts
and circumstances indicating that the defendant is either guilty
or not guilty. The law makes no distinction between the weight
you may give to either direct or circumstantial evidence.

Authority
General and Preliminary Instruction 1.08, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 19).

Government's
Request No. 8

CREDIBILITY OF WITNESSES

I remind you that it is your job to decide whether the

government has proved the guilt of the defendant beyond a
reasonable doubt. In doing so, you must consider all of the

evidence. This does not mean, however, that you must accept all
of the evidence as true or accurate.
You are the sole judges of the credibility or

"believability" of each witness and the weight to be given the

witness's testimony. An important part of your job will be
making judgments about the testimony of the witnesses [including
the defendant] who testified in this case. You should decide
whether you believe what each person had to say, and how
important that testimony was. In making that decision I suggest

that you ask yourself a few questions: Did the person impress

9
you as honest? Did the witness have any particular reason not to
tell the truth? Did the witness have a personal interest in the
outcome of the case? Did the witness have any relationship with
either the government or the defense? Did the witness seem to
have a good memory? Did the witness have the opportunity and
ability to understand the questions clearly and answer them
directly? Did the witness's testimony differ from the testimony
of other witnesses? These are a few of the considerations that
will help you determine the accuracy of what each witness said.

In making up your mind and reaching a verdict, do not make

any decisions simply because there were more witnesses on one
side than on the other. Do not reach a conclusion on a

particular point just because there were more witnesses

testifying for one side on that point. Your job is to think
about the testimony of each witness you have heard and decide how

much you believe of what each witness had to say.

Authority

General and Preliminary Instruction 1.09, Pattern Jury Instr.,

Crim., 5th Cir. 1990 (p. 20).
[Delete bracketed material if defendant does not testify.]

10
 Government's
Request No. 9
IMPEACHMENT BY PRIOR INCONSISTENCIES

The testimony of a witness may be discredited by showing

that the witness testified falsely concerning a material matter,
or by evidence that at some other time the witness said or did

something, or failed to say or do something, which is

inconsistent with the testimony the witness gave at this trial.
Earlier statements of a witness were not admitted in
evidence to prove that the contents of those statements are true.
You may consider the earlier statements only to determine whether
you think they are consistent or inconsistent with the trial

testimony of the witness and therefore whether they affect the

credibility of that witness.
If you believe that a witness has been discredited in this

manner, it is your exclusive right to give the testimony of that

witness whatever weight you think it deserves.
I remind you that a defendant has the right not to testify.

When the defendant does testify, however, his testimony should be

weighed and his credibility evaluated in the same way as that of
any other witness.

Authority

General and Preliminary Instruction 1.11, Pattern Jury Instr.,

Crim., 5th Cir. 1990 (p. 22).

11
 Government's
Request No. 10
IMPEACHMENT BY PRIOR CONVICTION
(WITNESS OTHER THAN DEFENDANT)

You have been told that the witness ____________ was

convicted in of conspiring to rig dairy bids submitted to

certain public schools in Mississippi. A conviction is a factor

you may consider in deciding whether to believe that witness, but
it does not necessarily destroy the witness's credibility. It
has been brought to your attention only because you may wish to
consider it when you decide whether you believe the witness's
testimony.

Authority
General and Preliminary Instruction 1.12, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 23).

12
 Government's
Request No. 11
CAUTION--PUNISHMENT
If the defendant is found guilty, it will be my duty to
decide what the punishment will be. You should not be concerned
with punishment in any way. It should not enter your

consideration or discussion.

Authority

General and Preliminary Instruction 1.21, Pattern Jury Instr.,

Crim., 5th Cir. 1990 (p. 32).

13
 Government's
Request No. 12
PURPOSE AND SUMMARY OF SHERMAN ACT SECTION 1
The indictment charges that the defendant violated a law of
the United States known as the Sherman Act. The purpose of the
Sherman Act is to preserve and advance our system of free
enterprise by encouraging, to the fullest extent practicable,
free and open competition in the marketplace, and by preventing

unreasonable restraint or monopolization of any business or

industry, so that the consuming public may receive better goods
and services at a lower cost.
Section 1 of the Sherman Act provides in relevant part that:
"Every contract, combination . . . or conspiracy, in restraint of
trade . . . among the several States . . . is . . . illegal."

So, any unreasonable interference, by contract, or

combination, or conspiracy, with the ordinary, usual and freely
competitive pricing or distribution system of the open market in

interstate trade and commerce, constitutes an unreasonable

restraint of interstate trade, and is in itself unlawful; and, if
knowingly done, is a federal offense under Section 1 of the
Sherman Act.

14
 Authority
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 51A.03 (4th ed. Supp. 1993), and cases cited therein.

National Soc'y of Professional Bldg. Eng'rs v. United States,435

U.S. 679, 694-95, 98 S. Ct. 1355, 1366-67 (1978).

United States v. Trenton Potteries Co., 273 U.S. 392, 47 S. Ct.

377, 379, 396-97 (1927).

15 U.S.C. § 1.

15
 Government's
Request No. 13
CAUTION--CONSIDER ONLY CRIME CHARGED

You are here to decide whether the government has proved

beyond a reasonable doubt that the defendant is guilty of the

crime charged. The defendant is not on trial for any act,
conduct, or offense not alleged in the indictment. Neither are
you concerned with the guilt of any other person or persons not
on trial as a defendant in this case.

Authority
General and Preliminary Instruction 1.20, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (p. 31).

16
 Government's
Request No. 14
OFFENSE CHARGED

A federal grand jury returned an indictment charging that

beginning at least as early as 1977 and continuing thereafter at
least through August 1988, the exact dates being unknown to the
grand jury, the defendant and others formed, joined and
participated in a continuing combination and conspiracy in

unreasonable restraint of interstate trade and commerce in the

dairy products business in eastern Mississippi in violation of
Title 15, Section 1 of the United States Code, commonly known as
the "Sherman Act."
The grand jury further charged that the combination and
conspiracy consisted of a continuing agreement, understanding,

and concert of action among the defendant and his

co-conspirators, the substantial terms of which were to rig or
agree upon the bids submitted to certain schools and other
institutions in eastern Mississippi by:
(a) discussing among themselves the submission of
prospective bids to certain public schools in eastern
Mississippi;

(b) agreeing upon and designating which corporate

conspirator would be the low, responsive bidder for

17
 contracts to supply dairy products to certain public
schools in eastern Mississippi;

(c) agreeing upon bid prices or approximate bid prices for

contracts to supply dairy products to certain public
schools in eastern Mississippi;

(d) having each corporate conspirator submit bids, or

refrain from submitting bids, for contracts to supply

dairy products to certain public schools in eastern

Mississippi in accordance with the collusive and
noncompetitive agreement;

(e) accepting the award of contracts to supply dairy

products to certain public schools in eastern

Mississippi pursuant to collusive, noncompetitive, and

rigged bids;

(f) supplying dairy products to certain public schools in

eastern Mississippi pursuant to contracts awarded on the
basis of collusive, noncompetitive, and rigged bids; and

(g) accepting payment for the supply of dairy products to

certain public schools in eastern Mississippi pursuant

18
 to contracts awarded on the basis of collusive,
noncompetitive, and rigged bids.

Authority
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 51A.01 (4th ed. Supp. 1993), and cases cited therein.
Indictment ¶ 4.

Government's
Request No. 15
OFFENSE - ESSENTIAL ELEMENTS OF THE SHERMAN ACT OFFENSE
Three essential elements must be proved to establish the

offense charged in the grand jury's indictment:

First: That the conspiracy as described in the indictment
was knowingly formed and was existing at or about
the time alleged;

Second: That the defendant knowingly became a member of the

conspiracy as charged; and

Third: That the alleged conspiracy restrained interstate

trade or commerce.

If you find beyond a reasonable doubt, from the evidence in

the case, that the existence of the conspiracy charged in the
indictment has been proved, then the conspiracy-offense charged
is complete, regardless of whether the defendant knowingly became
a member at the beginning of the conspiracy, or afterwards during
the continuance of the conspiracy, if you also find beyond a

reasonable doubt from the evidence that the trade or commerce

restrained by such conspiracy was interstate in nature.

19
 Authority
Devitt and Blackmar, Federal Jury Practice and Instructions,
Sections 51A.15, 51A.19 (4th ed. Supp. 1993), and cases cited
therein.
Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S. Ct.
1180, 1183-84 (1946).

United States v. All Star Indus., 962 F.2d 465, 474-75 (5th
Cir.), cert. denied, 113 S. Ct. 377 (1992).

United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980),
cert. denied, 451 U.S. 938, 101 S. Ct. 2017 (1981).

United States v. Beechum, 582 F.2d 898, 913 n.16 (5th Cir.
1978), cert. denied, 440 U.S. 920, 99 S. Ct. 1244 (1979).

United States v. Cadillac Overall Supply Co., 568 F.2d 1078,

1082-83 (5th Cir.), cert. denied, 437 U.S. 903, 98 S. Ct.
3088 (1978).

20
 Government's
Request No. 16
SHERMAN ACT - CONSPIRACY DEFINED
The first element requires the government to prove the
existence of a conspiracy, and I will now define the term
conspiracy for you.
A criminal conspiracy is an agreement between two or more
persons to join together to accomplish some unlawful purpose.

So, a conspiracy is a kind of "partnership in crime," in which

each member becomes the agent of every other member.
To constitute such an agreement or conspiracy, it is not
necessary that the participants meet together at the same time or
at the same place, or even that they meet at all, nor is it
necessary that all parties be present or participate in every act

committed for the accomplishment or furtherance of the objects of

the conspiracy. Neither is it necessary that any formal or
express contract or agreement be made between them and it need

not be reduced to writing. To prove such an agreement or

understanding it is not necessary for the government to show that
the parties met and formally agreed what to do. It is sufficient

if the parties reached a mutual understanding by any means or in

any manner, whether express or implied, so long as it appears,
beyond a reasonable doubt that such an understanding existed to
pursue a common and unlawful plan.

21
 A conspiracy or agreement to violate the law, like any other
kind of agreement or understanding, need not be formal, written,
or even expressed directly in every detail.
The government must prove that the defendant and at least one
competitor knowingly arrived at some type of agreement or
understanding that they, and perhaps others, would submit rigged
dairy bids to school boards by means of some common plan or
course of action as alleged in the indictment. The government
need not prove, however, that the conspiracy as alleged was

actually carried out. The bid-rigging agreement itself is the

crime.

Authority
Substantive Offense Instruction 2.21, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (pp. 89-90).
Summit Health, Ltd. v. Pinhas, 111 S. Ct. 1842,
1847 (1991).
United States v. General Motors Corp., 384 U.S. 127, 142-43
86 S. Ct. 1321, 1329 (1966).
United States v. Singer Mfg. Co., 374 U.S. 174, 194-95, 83
S. Ct. 1733, 1784 (1963).
American Tobacco Co. v. United States, 328 U.S. 781, 809-10,
66 S. Ct. 1125, 1139 (1946).
United States v. Pinkerton, 328 U.S. 640, 646-47, 66 S. Ct.
1180, 1183-84 (1946).
Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 458,
60 S. Ct. 618, 626 (1940).
Nash v. United States, 229 U.S. 373, 378, 33 S. Ct. 780, 782
(1913).

22
United States v. MMR Corp., 907 F.2d 489, 495 (5th Cir. 1990)
cert. denied, 499 U.S. 936, 111 S. Ct. 1388 (1991).

United States v. Gravely, 840 F.2d 1156, 1161 (4th Cir. 1988).
United States v. Bates, 600 F.2d 505, 509 (5th Cir. 1979).
United States v. Flom, 558 F.2d 1179, 1183 (5th Cir. 1977).

23
 Government's
Request No. 17
MEMBERSHIP IN A CONSPIRACY

In order to convict the defendant, you must determine both

that there was a conspiracy as charged in the indictment and that

the defendant was a member of that conspiracy. Before you may
find that the defendant became a member of the conspiracy
charged, the evidence must show beyond a reasonable doubt that
the defendant knowingly participated in the conspiracy, with the
intent to further or advance some object or purpose of the

conspiracy.
However, one may become a member of a conspiracy without full
knowledge of all the details of the unlawful scheme or the
identities of all the other alleged conspirators. It is not
necessary that all the conspirators meet together or that each
member of the conspiracy know every other member or the exact

part which each participant is playing. A member in a conspiracy

need not be an active participant in every phase of the
conspiracy. Even a single act may be enough to establish

membership in a conspiracy where the act is such that you may

infer from it participation in the criminal enterprise.
Moreover, if you find that a conspiracy existed and that the

defendant was a member of that conspiracy, then the defendant is

charged with the same responsibility as if he had been one of the
originators or instigators of the conspiracy or had participated

24
in every phase of the conspiracy. Because a conspiracy is a
partnership in crime, the acts or declarations of each member of
the conspiracy, in furtherance of a common objective of the
conspiracy, are the acts or declarations of all, including the
defendant, if you find he was a member of the conspiracy, as
charged.

Authority
Substantive Offense Instruction 2.21, Pattern Jury Instr.,
Crim., 5th Cir. 1990 (pp. 89-90).
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 28.05 (4th ed. 1990).
United States v. United States Gypsum Co., 438 U.S. 422, 463 &
n.36, 98 S. Ct. 2864, 2886 & n.36 (1978).
United States v. Pinkerton, 328 U.S. 640, 646-47, 66 S. Ct.
1180, 1183-84 (1946).
Hitchman Coal & Coke Co. v Mitchell, 245 U.S. 229, 249-50,
38 S. Ct. 65, 71-72 (1917).
United States v. Saavedra, 684 F.2d 1293, 1301 (9th Cir. 1982).

United States v. Watson, 669 F.2d 1374, 1379 (11th Cir. 1982).
United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir. 1980),
cert. denied, 451 U.S. 938, 101 S. Ct. 2017 (1981).
United States v. Michel, 588 F.2d 986, 1002 (5th Cir.),
cert. denied, 44 U.S. 825, 100 S. Ct. 47 (1979).
United States v. Consolidated Packaging Corp., 575 F.2d 117,
126-27 (7th Cir. 1978).

25
 Government's
Request No. 18
BID RIGGING PER SE UNREASONABLE

Bid rigging is an agreement between two or more competitors

to eliminate, reduce, or interfere with competition for a
contract that is to be awarded on the basis of bids. Bid rigging

may be an agreement among competitors about the prices to be bid,

who should bid low, or who should bid or refrain from bidding; or
any other agreement with respect to bidding that affects, limits,
or avoids competition among the bidders.
Every conspiracy to rig bids is unlawful, regardless of the
motives of the parties or any economic justification. This is

because the aim and result of every bid-rigging agreement, if

successful, is the elimination of one form of competition.
If there was a conspiracy as charged, it does not matter

whether the prices bid by the defendant and co-conspirators were

reasonable or unreasonable; high or low; fair or unfair. You are
not to decide whether the alleged conspiracy was wise or unwise,

or speculate on the degree to which competition was restrained on

the school dairy products contracts, or determine whether the
alleged conspiracy increased the cost of the school dairy
products. The Sherman Act makes illegal every conspiracy formed
for the purpose of rigging bids. If you find beyond a reasonable
doubt that the defendant was a member of a conspiracy to rig bids
on school dairy products contracts, then you need not decide

26
whether such conspiracy was reasonable or unreasonable because,
as I have just explained, an agreement among competitors not to
compete for contracts by submitting rigged or agreed-upon bids is
automatically unreasonable and a violation of the Sherman Act.
I further charge you that to violate the Sherman Act,
conspirators do not have to agree on the exact prices they will
submit. An agreement that companies will not submit independent
bids is bid rigging of the simplest kind and is automatically
unlawful.

If the conspiracy charged in the indictment is proved, it is

no defense that the conspirators actually competed with each
other in some manner or that they did not conspire to eliminate

all competition. Similarly, the conspiracy is unlawful even if

it did not extend to all products sold by the conspirators or did
not affect all of their customers.

If you find that the defendant entered into an agreement with

the alleged co-conspirators to rig or agree upon dairy bids
submitted to certain public schools in eastern Mississippi, the

fact that they may not have followed the agreement, or that one
or more of them may not have lived up to some aspect of the
agreement, or that they may not have been successful in achieving

their objectives, is no defense. In other words, you may find

that an illegal conspiracy existed, and that the defendant joined
it, even if the defendant or any co-conspirator did not actually

27
succeed in rigging school milk bids. The agreement is the crime,
even if it was never carried out.

Authority
ABA Sample Instructions at pp. 19 & 153-54.

Devitt & Blackmar, Federal Jury Practice and Instructions,

Sections 51A.13, 51A.18 (4th ed. Supp. 1993), and cases cited
therein.
Arizona v. Maricopa County Medical Soc'y, 457 U.S. 332,
102 S. Ct. 2466 (1982).
Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647,
100 S. Ct. 1925 (1980).
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223-24,
223-24, 60 S. Ct. 811, 844-845 (1940).
United States v. Trenton Potteries Co., 273 U.S. 392, 397,
47 S. Ct. 377, 381 (1927).
United States v. Fischbach & Moore, Inc., 750 F.2d 1183,
1189-90, 1192, 1196 (3d Cir. 1984), cert. denied, 470 U.S.
1029 (1985), 105 S. Ct. 1397 (1985).
United States v. Portsmouth Paving Corp., 694 F.2d 312, 317-18
(4th Cir. 1982).
United States v. Koppers Co., 652 F.2d 290, 293-96 (2d Cir.),
cert. denied, 454 U.S. 1083, 102 S. Ct. 639 (1981).
United States v. Foley, 598 F.2d 1323, 1333 (4th Cir. 1979),
cert. denied, 444 U.S. 1043, 100 S. Ct. 728 (1980).
United States v. Brighton Bldg. & Maintenance Co., 598 F.2d
1101, 1106 (7th Cir.), cert. denied, 444 U.S. 840,
100 S. Ct. 79 (1979).

United States v. Cadillac Overall Supply Co., 568 F.2d 1078,

1087-90 (5th Cir.), cert. denied, 437 U.S. 903, 98 S. Ct.
3088 (1978).
United States v. Flom, 558 F.2d 1179, 1183 (5th Cir. 1977).

28
 Government's
Request No. 19
KNOWLEDGE AND INTENT

The crime charged in this case requires proof of intent

before the defendant can be convicted. To establish the required

intent, the government must prove beyond a reasonable doubt that
the defendant knowingly did something which the law forbids. In
this case, that means that the government must prove beyond a
reasonable doubt that the defendant knowingly participated in a
conspiracy to rig or agree upon dairy bids submitted to certain

public schools in eastern Mississippi. The word "knowingly," as

that term has been used from time to time in these instructions,
means that the act was done voluntarily and intentionally, not
because of mistake or accident. It is not necessary for the
government to prove that the defendant knew that the agreement,
combination, or conspiracy to rig school bids is a violation of

the law.
As I instructed you, a combination or conspiracy to rig bids
is unreasonable and illegal as a matter of law, and, therefore,

the government does not have to prove that the defendant

specifically intended to unreasonably restrain trade or that such
conduct is an unreasonable restraint of trade.

Intent ordinarily may not be proved directly, because there

is no way of directly scrutinizing the workings of the human
mind. You may, however, infer the defendant's intent from the

29
surrounding circumstances. You may consider any statements made
or acts done or omitted by the defendant as well as all other
facts and circumstances received in evidence which may aid in
your determination of the defendant's knowledge or intent.

Authority

General and Preliminary Instruction 1.35, Pattern Jury Instr.,

Crim., 5th Cir. 1990 (p. 49).
Devitt & Blackmar, Federal Jury Practice and Instructions,
Sections 17.07, 51A.16 (4th ed. 1990 & Supp. 1993), and cases
cited therein.
United States v. United States Gypsum Co., 438 U.S. 422, 444-46,
98 S. Ct. 2864, 2876 (1978).
United States v. Trenton Potteries, 273 U.S. 392, 397, 47 S. Ct.
377, 379 (1926).
United States v. All Star Indus., 962 F.2d 465, 474-75 (5th
Cir.), 113 S. Ct. 377 (1992).
United States v. MMR Corp., 907 F.2d 489, 495 (5th Cir. 1990),
cert. denied, 499 U.S. 936, 111 S. Ct. 1388 (1991).
United States v. Cargo Serv. Stations, Inc., 657 F.2d 676, 684
(5th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1712
(1982).

United States v. Brighton Bldg. & Maintenance Co., 598 F.2d

1101, 1104 (7th Cir.), cert. denied, 444 U.S. 840,
100 S. Ct. 79 (1979).

30
 Government's
Request No. 20
INTERSTATE COMMERCE

One element of the offense charged in the indictment is that

the charged bid-rigging conspiracy was in restraint of interstate
commerce. If you find beyond a reasonable doubt that the

conspiracy did exist and that the defendant knowingly became a

member of it, you must then determine beyond a reasonable doubt
if the conspiracy was in restraint of interstate commerce.
The term "interstate" commerce involves the movement of goods
and items or the conduct of transactions from one state to
another in the course of business. It is a question of fact for

you to determine whether the charged conspiracy was in restraint

of interstate commerce. In this regard, interstate commerce is
not a technical legal question, but a practical one based upon

the facts establishing the manner in which a business operates.

A bid-rigging conspiracy may restrain interstate commerce in
one or both of the following ways. First, a bid-rigging

conspiracy may restrain interstate commerce if some aspect of the

conspiracy had a direct impact on interstate business
transactions. This is known as the "flow" theory of interstate
commerce. As long as the government proves beyond a reasonable
doubt that the charged conspiracy occurred within the flow of
interstate commerce, the magnitude or dollar amount of business
affected is unimportant. The second way in which interstate

31
commerce could be restrained is if the charged conspiracy
attached directly to a purely local activity but a substantial
amount or quantity of interstate commerce was affected by that
local business activity. The indictment in this case charges
both methods of restraint, but the evidence need only prove that
one or the other occurred in order to satisfy the interstate
commerce element of the offense.

Authority

McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232,

242-46, 100 S. Ct. 502, 509-11 (1980).
Goldfarb v. Virginia State Bar, 421 U.S. 773, 785, 95 S. Ct.
2004, 2012 (1975).
Keifer-Stewart Co. v. Joseph E. Seagram & Sons, 340 U.S. 211,
212, 213-15, 71 S. Ct. 259, 259-61 (1951).
United States v. Women's Sportswear Mfg. Ass'n, 336 U.S.
460, 464, 69 S. Ct. 714, 716 (1949).
Mandeville Island Farms, Inc. v. American Crystal Sugar Co.,
334 U.S. 219, 236-238, 68 S. Ct. 996, 1006-07 (1948).
United States v. Yellow Cab Co., 332 U.S. 218, 225, 67 S. Ct.
1560, 1564 (1947).
Swift & Co. v. United States, 196 U.S. 375, 398-400, 25 S. Ct.
276, 280-81 (1905).
United States v. Georgia Waste Systems, Inc., 731 F.2d 1580,
1583 (11th Cir. 1984).
United States v. Cargo Serv. Stations, Inc., 657 F.2d 676,
679-80 (5th Cir. 1981), cert denied, 455 U.S. 1017,
102 S. Ct. 1712 (1982).
Battle v. Liberty Nat'l Life Ins. Corp., 493 F.2d 39, 47 (5th
Cir. 1974), cert. denied, 419 U.S. 1110, 95 S. Ct. 784
(1975).

32
United States v. South Florida Asphalt Co., 329 F.2d 860,
865-68 (5th Cir.), cert. denied, 379 U.S. 880, 855 S. Ct.
149 (1964).
United States v. Standard Oil Co., 316 F.2d 884, 896, 898
(7th Cir. 1963).
Plymouth Dealers' Ass'n v. United States, 279 F.2d 128, 132
(9th Cir. 1960).

33
 Government's
Request No. 21
OFFENSE - STATUTE OF LIMITATIONS

Now, there is one time period that is essential, and that is

the statute of limitations period for the Sherman Act offense
charged in the Indictment. The grand jury returned its

indictment of the defendant on July 22, 1993. The statute of

limitations for this offense is five years. This means that to
find the defendant guilty of violating the Sherman Antitrust Act
you must find beyond a reasonable doubt that he was a member of a
conspiracy that continued after July 22, 1988. In making that
determination you may of course consider evidence of activity

which occurred prior to July 22, 1988. It is not necessary for

the government to prove that new or additional agreements were
formed after July 22, 1988.

A conspiracy is a partnership in criminal purposes that

continues as long as its purposes have neither been accomplished
nor abandoned. All acts that intentionally furthered the goals

of the conspiracy--even the act of a single conspirator, and even

an act lawful by itself--are part of a conspiracy and keep it in
existence.
Receiving a payment from a school district for performing a
rigged school milk contract is an act in furtherance of a
conspiracy, such as that charged in the indictment. Therefore,
if you find that a conspiracy existed, and if you find that any

34
of the defendant's corporate co-conspirators received payments
from a school district under a rigged contract, and that any of
those payments were made on or after July 22, 1988, then you may
find that the conspiracy existed within the statute of
limitations.

Authority
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 51A.20 (4th ed. Supp. 1993), and cases cited therein.
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct.
811 (1940).
United States v. Kissel, 218 U.S. 601, 608, 31 S. Ct. 124
(1910).
United States v. Dynalectric Co., 859 F.2d 1559, 1563-69
(11th Cir. 1988), cert. denied, 490 U.S. 1006, 109 S. Ct.
1641 (1989).

United States v. Northern Improvement Co., 814 F.2d 540, 541-42

(8th Cir.), cert. denied, 484 U.S. 846, 108 S. Ct. 141,
(1987).
United States v. A-A-A Electric Co., 788 F.2d 242, 244-46
(4th Cir. 1986).
United States v. Girard, 744 F.2d 1170, 1172-73 (5th Cir. 1984).

35
 Government's
Request No. 22
OFFENSE - EXACT DATE NOT REQUIRED

You will note that the grand jury's indictment charges that

the alleged conspiracy began at least as early as 1977 and

continued thereafter at least through August 1988. It is not
necessary that the government prove the exact dates of the
conspiracy or that the conspiracy continued for the entire period
charged in the indictment. It is sufficient if the evidence
shows beyond a reasonable doubt that the conspiracy existed at or

reasonably near the time alleged in the grand jury's indictment

and that the defendant joined it sometime during the time set
forth in the indictment and continued to be a member within the
statute of limitations.

Authority
See General and Preliminary Instruction 1.19, Pattern Jury
Instr., Crim., 5th Cir. 1990 (p. 30).
United States v. Lokey, 945 F.2d 825, 832 (5th Cir. 1991).
United States v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986).

United States v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983).

36
 Government's
Request No. 23
OFFENSE - SUCCESS IMMATERIAL

The success or failure of an alleged Sherman Act bid-rigging

conspiracy to accomplish its objects or purposes is immaterial.

The act of conspiring in violation of the Sherman Act, by
agreeing to rig bids, is itself an offense, and it does not
matter whether an effort was made to carry the bid-rigging
conspiracy into effect, or whether the conspirators had the power
to put it into effect.

In other words, you may find that the illegal conspiracy was
formed even if the defendant did not actually succeed in rigging
dairy bids submitted to certain public schools in eastern
Mississippi. The mere forming of the agreement or understanding
to try to rig bids is sufficient to violate the law.

Authority
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 51A.19 (4th ed. Supp. 1993).
American Tobacco Co. v. United States, 328 U.S. 78l, 789,
66 S. Ct. 1125, 1129 (l946).
Associated Press v. United States, 326 U.S. l, l2-l3, 65 S. Ct.
1416, 1421 (l945).
United States v. Socony-Vacuum Oil Co., 3l0 U.S. l50, 224-25
& n.59, 60 S. Ct. 811, 844-46 & n.59 (l940).
United States v. Trenton Potteries Co., 273 U.S. 392, 402-03,
47 S. Ct. 377, 381-82 (l927).

37
Nash v. United States, 229 U.S. 373, 378, 33 S. Ct. 780, 782
(1913).

United States v. Flom, 558 F.2d 1179, 1183 (5th Cir. 1977).
Plymouth Dealers' Ass'n v. United States, 279 F.2d l28, l32
(4th Cir. l960).
Pittsburgh Plate Glass Co. v. United States, 260 F.2d 397, 40l
(4th Cir. l958), aff'd on other grounds, 360 U.S. 395,
79 S. Ct. 1237 (l959).

38
 Government's
Request No. 24
PROOF OF OVERT ACT UNNECESSARY

The government need not show that the members of the alleged

conspiracy did any act or thing to further or accomplish any

object or purpose of the bid-rigging agreement or arrangement or
understanding.
It is the agreement itself that is the violation. Any
actions taken to carry out such a bid-rigging agreement are
evidence of the existence of the agreement but are not a

necessary part of the crime.

Authority

Devitt & Blackmar, Federal Jury Practice and Instructions,

Section 51A.19 (4th ed. Supp. 1993), and cases cited therein.

United States v. Dynalectric Co., 859 F.2d 1559, 1564 n.6

(11th Cir. 1988) (quoting United States v. Ben M. Hogan
Co., 809 F.2d 480, 482 (8th Cir.), cert. denied,
490 U.S. 1006, 108 S. Ct. 84 (1987)).
United States v. Flom, 558 F.2d 1179 (5th Cir. 1977).
United States v. Portsmouth Paving & Corp., 694 F.2d 312, 324
(4th Cir. 1982).

39
 Government's
Request No. 25
OFFENSE - GOOD MOTIVES IMMATERIAL

If you find beyond a reasonable doubt that the defendant

conspired in restraint of interstate commerce by rigging or

agreeing upon dairy bids submitted to certain public schools in
eastern Mississippi, as alleged in the indictment, you need not
concern yourself with his reasons for doing so. A bid-rigging
conspiracy is unlawful even if it was formed or engaged in with
what the conspirators thought were good motives.

A bid-rigging conspiracy, such as charged in the grand jury's

indictment, cannot therefore be justified under the law, even
though the conspiracy may have been formed, or engaged in, to
ensure every competitor what he thinks is his fair share of the
business, or to prevent excessive competition or to eliminate the
supposed evils of price cutting. A bid-rigging agreement is

illegal, regardless of whether the conspirators' motives were

either good or bad, or both.

Authority
Devitt & Blackmar, Federal Jury Practice and Instructions,
Section 51A.18 (4th ed. Supp. 1993), and cases cited therein.
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 220,
228, 60 S. Ct. 811, 843, 846 (1940).
United States v. All Star Indus., 962 F.2d 465, 475 n.20,
(5th Cir.), cert. denied, 113 S. Ct. 377 (1992).

40
 Government's
Request No. 26
JURISDICTION AND VENUE

Before you can find the defendant guilty, you must find

beyond a reasonable doubt that the conspiracy was entered into,

or carried out in part, or that some means, methods, or practices
in furtherance of the conspiracy were employed by or under the
authority of the members of the alleged conspiracy within the
Eastern Division of the Southern District of Mississippi.
In that regard, I instruct you that Lauderdale County is

within the Eastern Division of the Southern District of

Mississippi.

Authority

Devitt & Blackmar, Federal Jury Practice and Instructions,

Section 51A.21 (4th ed. Supp. 1993), and cases cited therein.

41
 Government's
Request No. 27
WITNESSES - IMMUNITY AND PLEA AGREEMENTS
In this case, the Court entered orders compelling certain
witnesses to appear and to testify. Thus, the testimony of such
individuals was immunized.
Also, the United States has entered into plea agreements with
three dairy companies and five individuals who testified as

witnesses at the trial. These witnesses agreed to plead guilty,

and the plea agreements provided that the United States would
bring no further criminal charges against these persons in
exchange for their cooperation. Such plea bargaining, as it is
called, has been approved as lawful and proper, and is expressly
provided for in the rules of this Court. The fact that an

accomplice has entered a plea of guilty to the conspiracy charge

is not evidence, in and of itself, of the guilt of any other
person.

An alleged co-conspirator, including one who has entered into

a plea agreement with the prosecution or received immunity, is a
competent witness. The testimony of such a witness may alone be
of sufficient weight to sustain a verdict of guilty. However,
the jury should keep in mind that such testimony is always to be
received with caution and weighed with greater care than the

testimony of an ordinary witness. You should never convict a

defendant upon the unsupported testimony of an alleged accomplice
unless you believe that testimony beyond a reasonable doubt.

42
 Authority

General and Preliminary Instructions 1.15, 1.16, Pattern Jury

Instr., Crim., 5th Cir. 1990 (pp. 26-27).

Devitt & Blackmar, Federal Jury Practice and Instructions,

Sections 15.03, 15.04 (4th ed. 1992), and cases
cited therein.
Caminetti v. United States, 242 U.S. 470, 495, 37 S. Ct. 192, 198
(1917).
United States v. Figurski, 545 F.2d 389, 392 (4th Cir. 1976).

43
 Government's
Request No. 28
DUTY TO DELIBERATE - VERDICT FORM

To reach a verdict, all of you must agree. Your verdict must

be unanimous on each count of the indictment. Your deliberations
will be secret. You will never have to explain your verdict to

anyone.
It is your duty to consult with one another and to deliberate
in an effort to reach agreement if you can do so. Each of you
must decide the case for yourself, but only after an impartial
consideration of the evidence with your fellow jurors. During
your deliberations, do not hesitate to reexamine your own

opinions and change your mind if convinced that you were wrong.
But do not give up your honest beliefs as to the weight or effect
of the evidence solely because of the opinion of your fellow

jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges--judges of the facts.
Your sole interest is to seek the truth from the evidence in the

case, to decide whether the government has proved the defendant

guilty beyond a reasonable doubt.
When you go to the jury room, the first thing that you should
do is select one of your number as your foreperson, who will help
to guide your deliberations and will speak for you here in the
courtroom.

44
 A form of verdict has been prepared for your convenience.
[Explain verdict form.]
The foreperson will write the unanimous answer of the jury in
the space provided for in each count of the indictment, either
guilty or not guilty. At the conclusion of your deliberations,
the foreperson should date and sign the verdict.
If you need to communicate with me during your deliberations,
the foreperson should write the message and give it to the
marshal. I will either reply in writing or bring you back into

the court to answer your message.

Bear in mind that you are never to reveal to any person, not
even to the court, how the jury stands, numerically or otherwise,

on any count of the indictment, until after you have reached a

unanimous verdict.

AUTHORITY

General and Preliminary Instruction 1.25, Pattern Jury Instr.,

Crim., 5th Cir. 1990 (pp. 36-37).

45